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2018 DIGILAW 802 (PAT)

Nityanand Singh v. State of Bihar

2018-05-09

ASHWANI KUMAR SINGH

body2018
ORDER : Heard learned counsel for the petitioner, learned counsel for the State, learned counsel for the State Election Commission and Mr. Rajendra Prasad Singh, learned Senior Counsel and Mr. S.B.K. Mangalam, learned counsel, who appear on behalf of Ramakant Kumar and Manoj Kumar Singh, who have filed I. A. No.3295 of 2018 and I. A. No.3558 of 2018 respectively for being impleaded as party respondents. 2. The reliefs prayed for by the petitioner in Para-1 read as under :- “1. That this instant writ application is being filed on behalf of the petitioner above named for following reliefs:- (i). For issuance of an appropriate writ in the nature of CERTIORARI for quashing or setting aside the order dated 04.04.2018 passed by the Respondent No. 1 and issued under signature of Under Secretary (Respondent No. 4) vide Memo No. 1982 dated 04.04.2018 whereby and whereunder the Respondent No. 1 has been pleased to remove the petitioner form the post of Chairman/Adhyaksh Nagar Parishad, Arwal under section 25(5) of the Bihar Municipal Act, 2007 (as amended) on the basis of report of the Accountant Examination made by C.A.G and report of Vigilance department dated 01.06.2017 which was mentioned in the order itself. (ii) For issuance of an appropriate writ in the nature of CERTIORARI for setting aside the report made by C.A.G vide Memo No. 14589/205 dated 28.09.2016 with regard to examination of accounts, report of the District Magistrate Arwal vide Letter No. 571 dated 30.09.2016, Special Accounts Report vide Letter No. 14646/469 dated 15.03.2017 and Letter No. 2294 dated 01.06. 2017 made by Technical cell of Vigilance Department which are part of order dated 04.04.2018 as contained in Annexure - P/8 because all these enquiry reports are contrary to Section 66 of the Bihar Municipal Act, 2007. (iii) For issuance of an appropriate writ in the nature of MANDAMUS commanding and directing the Respondent Authorities to made an enquiry in terms of Section 66 of the Bihar Municipal Act, 2007 (as amended) and thereafter proceed afresh in the matter. (iv) For issuance of an appropriate writ in the nature of mandamus commanding and directing the Respondent Authorities to not act upon the order of the Respondent No. 1 dated 04.04.2018 as contained in Annexure- P/8. (iv) For issuance of an appropriate writ in the nature of mandamus commanding and directing the Respondent Authorities to not act upon the order of the Respondent No. 1 dated 04.04.2018 as contained in Annexure- P/8. (v) For issuance of an appropriate writ in the nature of prohibition restraining the Respondent No. [Ed.-sic] the State Election Commission for notifying the election was the Chief Councillor, Nagar Parishad, Arwal in the light of order dated 04.04.2018 passed by the Respondent No. 1 as contained in Annexure- P/8. VI. For any other relief/reliefs to which the petitioner deemed entitled into the facts and circumstances of the case.” 3. At the outset, Mr. Vindhyachal Singh, learned counsel appearing for the petitioner submitted that he is not pressing the relief mentioned in sub-para-II of Para-1 of the writ petition. 4. He submitted that in view of the provisions prescribed under-section (5) of Section 25 of the Bihar Municipal Act, 2007 (for short ‘Act’), before removing the petitioner from the post of Chief Councillor, there ought to have been a finding of guilt of misconduct in discharge of his duties and functions under the Act first and thereafter a reasonable opportunity for explanation ought to have been given regarding those findings. In the instant case, no such finding of guilt was recorded by the competent authority before seeking explanation from the petitioner. He contended that in the present case, a peculiar procedure has been adopted by the Principal Secretary of Urban Development Department whereby without there being any finding of guilt, he straightway proceeded to consider the matter of removal, which is not permissible in law. In support of his submission, he has placed reliance on a judgment of this Court dated 23.01.2017 passed in Nazia Begum vs. the State of Bihar & Ors. (CWJC No. 10912 of 2016). 5. He has further submitted that the charges for which explanations were sought for from the petitioner related to financial irregularities committed in the matter of purchase of several articles by the Arwal Nagar Parishad. According to him, the decision to purchase those articles was not the individual decision of the petitioner rather the same was taken by a body which was certainly headed by the petitioner in the capacity of Chief Councillor. He submitted that for the decision taken by a body, there cannot be any vicarious liability upon an individual. According to him, the decision to purchase those articles was not the individual decision of the petitioner rather the same was taken by a body which was certainly headed by the petitioner in the capacity of Chief Councillor. He submitted that for the decision taken by a body, there cannot be any vicarious liability upon an individual. In support of his submission, he has placed reliance on a decision of the Supreme Court in Ravi Yashwant Bhoir vs. the District Collector, Raigad & Ors. [ (2012) 4 SCC 407 ]. 6. The third submission of the petitioner is that the entire charges against the petitioner for which explanation was sought for from him are of the period 2014-15 and 2015-16, which is the period of his previous tenure of Chief Councillor of the Nagar Parishad. He submitted that the petitioner was elected as a Councillor of Arwal Nagar Parishad in the year 2012. He was elected as Chief Councillor on 12.02.2015 and his term expired on 12.03.2016. Thereafter, in the next election, he again got elected as a Councillor and was further elected as Chief Councillor of Arwal Nagar Parishad on 12.04.2016. He has drawn my attention towards the show-cause issued against him for alleged acts of misconduct which would suggest that the entire allegations relate to the period of his discharge of duty as Chief Councillor on or before 01.04.2016. He submitted that from the language of sub-section (5) of Section 25 of the Act, it would be manifest that the Chief Councillor/Deputy Chief Councillor who abuses his power as Chief Councillor/Deputy Chief Councillor would be removed from the post under three circumstances enumerated therein. In the present case, the petitioner, who is alleged to have misused the power seized to be the Chief Councillor on the term of Nagar Parishad having been expired on 12.03.2016. He contended that for any act of omission and commission in discharge of duty on or before 12.03.2016, in exercise of powers conferred under sub-section (5) of Section 25 of the Act, the petitioner cannot be removed from the post of Chief Councillor in his present term. He submitted that the language of sub-section (5) of Section 25 of the Act is couched in the same manner as in sub-section (5) of Section 18 of Bihar Panchayat Act, 2006 and in the matter of Dinesh Panday vs. State of Bihar & Ors. He submitted that the language of sub-section (5) of Section 25 of the Act is couched in the same manner as in sub-section (5) of Section 18 of Bihar Panchayat Act, 2006 and in the matter of Dinesh Panday vs. State of Bihar & Ors. [ 2010 (3) PLJR 149 ], a Bench of this court has clearly held that all the powers of the State as under- Section 18(5) of the Bihar Panchayat Act expires with the expiry of the term of Gram Panchayat. 7. On the other hand, learned counsel appearing for the State vehemently contested the matter. He submitted that none of the points argued on behalf of the petitioner carries any weight. According to him, the State has got jurisdiction to remove a Chief Councillor of Nagar Parishad on the ground of misconduct. The charges against the petitioner are quite serious. Those charges were inquired into by the special audit team of the Accountant General, Bihar and the audit team has highlighted the financial irregularities committed in purchase of various articles by the Arwal Nagar Parishad and during the relevant period, the petitioner was the Chief Councillor of the Nagar Parishad. He submitted that on the basis of those reports, a preliminary inquiry has also been conducted against the petitioner by the vigilance and on the basis of preliminary inquiry report, a criminal case has also been instituted against him in which the investigation is going on. He submitted that the petitioner had been asked to submit show-cause in respect of alleged acts of misconduct and he has also submitted his explanation to those charges and only after evaluating the merits of the explanation submitted by the petitioner the respondent no. 1 came to the finding that the petitioner has been guilty of misconduct in discharge of his duties and only thereafter a decision has been taken to remove him from the post of Chief Councillor. He submitted that as far as reliance of the petitioner on the decision of this Court in Dinesh Panday vs. State of Bihar (Supra) is concerned, though the charges framed against the petitioner were for the misconduct committed during his previous tenure, it came to light in course of hearing that even in the present tenure, financial irregularities have been committed and payments have been made by the petitioner. According to him, the reliance placed by the petitioner on the judgment in Dinesh Pandey vs. State of Bihar (Supra) is misplaced. 8. He submitted that as far as the question of vicarious liability is concerned, since the petitioner was heading the body which took decision for purchase of several articles on a rate higher than the lower rate quoted by the tenderers, the petitioner cannot be absolved of charges of misconduct. He submitted that the petitioner had also been responsible for irregularities committed in the constitution of the body, which took the decision for purchase of articles on exorbitant rate as some members who were required to be included in the committee responsible for taking a decision, were not included in the committee. 9. Learned counsel appearing for the State Election Commission submitted that since the Principal Secretary has passed order of removal of the petitioner from the post of Chief Councillor, a decision has been taken to hold election on the vacant post of the Chief Councillor. He submitted that as far as the merit of the case is concerned, the Election Commission has no role to play and it is for the State to defend its order. 10. Mr. Rajendra Prasad Singh, learned Senior Counsel and Mr. S. B. K. Mangalam, learned counsel have submitted that the proceeding under sub-section (5) of Section 25 had been initiated on the complaint made by the respective petitioners of the two interlocutory applications and hence they be impleaded as party respondents. 11. So far as the issue of impleadment of the intervenors as respondents to contest the matter is concerned, the prayer has been contested by the counsel for the petitioner. He submitted that the prayer is being made by the intervenors only on the ground that it was their complaint on the basis of which the matter was inquired into. In this regard, he submitted that in such matters, the complainant cannot claim the status of an adversial litigant. He submitted that they are political rivals being Councilor in the said Nagar Parishad and they are not the persons who have suffered any harm or loss for which they may be allowed to contest. In this regard also, he has placed reliance on the decision of the Supreme Court in Ravi Yashwant Bhoir vs. the District Collector, Raigad (Supra). 12. I have heard learned counsel for the parties. 13. In this regard also, he has placed reliance on the decision of the Supreme Court in Ravi Yashwant Bhoir vs. the District Collector, Raigad (Supra). 12. I have heard learned counsel for the parties. 13. Sub-section (5) of Section 25 of the Act reads as under:- “25(5). Without prejudice to the provisions under this Act, if, in opinion of the Government the Chief Councillor/Deputy Chief Councillor absents himself without sufficient cause for more than three consecutive meetings or sittings or willfully omits or refuses to perform his duties and functions under this Act, or is found to be guilty of misconduct in the discharge of his duties or becomes physically or mentally incapacitated for performing his duties or is absconding being an accused in a criminal case for more than six months, the Divisional Commissioner may, after giving the Chief Councillor/Deputy Chief Councillor a reasonable opportunity for explanation, by order, remove such Chief Councillor from office. Provided that after appointment of Lok Prahari, under Section-44, the Government, may pass order under this sub-section only on the basis of recommendation of such Lok Prahari.” 14. From a reading of sub-section (5) of Section 25 of the Act, prima facie, this Court is of the opinion that the legislative intent is that a Chief Councillor/Deputy Chief Councillor may be disqualified for the remaining period of tenure, if the acts of misconduct and abuse of position is done in the current tenure. Such ground for disqualification cannot date back to the previous tenure of petitioner. 15. Further, I am also of the view that for the acts of misconduct in discharge of duty firstly guilt has to be established either in a judicial proceeding or by a competent authority in an appropriate proceeding and only thereafter an explanation has to be sought from the Chier Councillor or the Deputy Chief Councillor in respect of proved misconduct and only thereafter an order of removal can be passed. 16. However, I must record that these are my prima facie views. In view of importance of the issues raised herein, the matter would require further hearing. 17. Admit 18. Rule is made returnable within three months. 19. The locus of the petitioners of intervention applications shall also be considered at the time of hearing of the mater. 20. In the meantime, the impugned order dated 04.04.2018 passed by respondent no. 1 shall remain stayed.